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Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

40 CFR Parts 52 and 81

[OH92-1 & OH79-3; FRL-5458-8]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; Ohio

AGENCY: Environmental Protection

Agency (USEPA).

ACTION: Final rule.

SUMMARY: The USEPA is determining

that the Cleveland -Akron -Lorain (CAL)

ozone nonattainment area (which

includes the Counties of Ashtabula,

Cuyahoga, Geauga, Lake, Lorain,

Medina, Portage and Summit) has

attained the public health-based

National Ambient Air Quality Standard

(NAAQS) for ozone. This determination

is based upon three years of complete,

quality-assured, ambient air monitoring

data for the 1993 to 1995 ozone seasons

that demonstrate that the ozone NAAQS

has been attained in each of these areas.

On the basis of this determination,

USEPA is also determining that certain

reasonable-further-progress (RFP) and

attainment demonstration requirements,

along with certain other related

requirements, of Part D of Title 1 of the

Clean Air Act (CAA) are not applicable

to the Cleveland -Akron -Lorain area.

In another part of this rulemaking, the

USEPA is approving the Ohio

Environmental Protection Agency

(OEPA) request to revise the official

designation of the Cleveland -AkronLorain (CAL) area as an area that is

meeting the ozone air quality standard.

The USEPA is also approving the CAL

area maintenance plan as a revision to

Ohio's State Implementation Plan (SIP)

for ozone. The purpose of the

maintenance plan is to provide for

continued good ozone air quality levels

in the area over the next 10 years.

EFFECTIVE DATE: This final rule is

effective on May 7, 1996.

ADDRESSES: Copies of the determination

of attainment, redesignation requests,

public comments on the rulemaking,

and other materials relating to this

rulemaking are available for inspection

at the following address: (It is

recommended that you telephone

William Jones at (312) 886-6058, before

visiting the Region 5 Office.) United

States Environmental Protection

Agency, Region 5, Air and Radiation

Division, 77 West Jackson Boulevard

(AR-18J), Chicago, Illinois 60604.

FOR FURTHER INFORMATION ON THIS ACTION

CONTACT: William Jones, Air Programs

Branch, Regulation Development

Section (AR-18J), United States

Environmental Protection Agency,

Region 5, Chicago, Illinois 60604, (312)

886-6058.

SUPPLEMENTARY INFORMATION:

Determination of Attainment

I. Background

Subpart 2 of Part D of Title I of the

CAA contains various air quality

planning and state implementation plan

(SIP) submission requirements for ozone

nonattainment areas. The USEPA

believes it is reasonable to interpret

provisions regarding RFP and

attainment demonstrations, along with

certain other related provisions, so as

not to require SIP submissions if an

ozone nonattainment area subject to

those requirements is monitoring

attainment of the ozone standard (i.e.,

attainment of the NAAQS demonstrated

with three consecutive years of

complete, quality-assured, air quality

monitoring data). As described below,

USEPA has previously interpreted the

general provisions of subpart 1 of part

D of Title I (sections 171 and 172) so as

not to require the submission of SIP

revisions concerning RFP, attainment

demonstrations, or contingency

measures. As explained in a

memorandum from John S. Seitz,

Director, Office of Air Quality Planning

and Standards, entitled "Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard," dated

May 10, 1995, USEPA believes it is

appropriate to interpret the more

specific RFP, attainment demonstration

and related provisions of subpart 2 in

the same manner.

First, with respect to RFP, section

171(1) of the CAA states that, for

purposes of part D of Title I, RFP

means such annual incremental

reductions in emissions of the relevant

air pollutant as are required by this part

or may reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

NAAQS by the applicable date." Thus,

whether dealing with the general RFP

requirement of section 172(c)(2), or the

more specific RFP requirements of

subpart 2 for classified ozone

nonattainment areas (such as the 15

percent plan requirement of section

182(b)(1)), the stated purpose of RFP is

to ensure attainment by the applicable

attainment date.' If an area has in fact

1

USEPA notes that paragraph (1) of subsection

182(b) is entitled "PLAN PROVISIONS FOR

REASONABLE FURTHER PROGRESS" and that

subparagraph (B) of paragraph 182(c)(2) is entitled

"REASONABLE FURTHER PROGRESS

DEMONSTRATION," thereby making it clear that

attained the standard, the stated

purpose of the RFP requirement will

have already been fulfilled and USEPA

does not believe that the area need

submit revisions providing for the

further emission reductions described in

the RFP provisions of section 182(b)(1).

The USEPA notes that it took this

view with respect to the general RFP

requirement of section 172(c)(2) in the

General Preamble for the Interpretation

of Title I of the Clean Air Act

Amendments of 1990 (57 FR 13498

(April 16, 1992)), and it is now

extending that interpretation to the

specific provisions of subpart 2. In the

General Preamble, USEPA stated, in the

context of a discussion of the

requirements applicable to the

evaluation of requests to redesignate

nonattainment areas to attainment, that

the "requirements for RFP will not

apply in evaluating a request for

redesignation to attainment since, at a

minimum, the air quality data for the

area must show that the area has already

attained. Showing that the State will

make RFP towards attainment will,

therefore, have no meaning at that

point." (See 57 FR at 13564)2

Second, with respect to the

attainment demonstration requirements

of Section 182(b)(1), an analogous

rationale leads to the same result.

Section 182(b)(1) requires that the plan

provide for "such specific annual

reductions in emissions * * * as

necessary to attain the national primary

ambient air quality standard by the

attainment date applicable under this

Act." As with the RFP requirements, if

an area has in fact monitored attainment

of the standard, USEPA believes there is

no need for an area to make a further

submission containing additional

measures to achieve attainment. This is

also consistent with the interpretation of

certain section 172(c) requirements

provided by USEPA in the General

Preamble to Title I. As USEPA stated in

the Preamble, no other measures to

provide for attainment would be needed

by areas seeking redesignation to

attainment since "attainment will have

been reached." (57 FR at 13564; see also

September 1992 Calcagni memorandum

both the 15 percent plan requirement of section

182(b)(1) and the 3 percent per year requirement of

section 182(c)(2) are specific varieties of RFP

requirements.

2See also "Procedures for Processing Requests to

Redesignate Areas to Attainment," from John

Calcagni, Director, Air Quality Management

Division, to Regional Air Division Directors,

September 4, 1992, at page 6 (stating that the

"requirements for reasonable further progress

will not apply for redesignations because they only

have meaning for areas not attaining the standard")

(hereinafter referred to as "September 1992

Calcagni memorandum").

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at page 6). Upon attainment of the

NAAQS, the focus of state planning

efforts shifts to the maintenance of the

NAAQS and the development of a

maintenance plan under Section 175A.

Similar reasoning applies to other

related provisions of subpart 2. The first

of these are the contingency measure

requirements of section 172(c)(9) of the

Act. The USEPA has previously

interpreted the contingency measure

requirement of section 172(c)(9) as no

longer being applicable once an area has

attained the standard since those

"contingency measures are directed at

ensuring RFP and attainment by the

applicable date." (57 FR at 13564; see

also September 1992 Calcagni

memorandum at page 6).

The State must continue to operate an

appropriate air quality monitoring

network, in accordance with 40 CFR

part 58, to verify the attainment status

of the area. The air quality data relied

upon to determine that the area is

attaining the ozone standard must be

consistent with 40 CFR part 58

requirements and other relevant USEPA

guidance and recorded in USEPA'sAerometric Information Retrieval

System (AIRS).

The determinations made in this

notice do not shield an area from future

USEPA action to require emissions

reductions from sources in the area

where there is evidence, such as

photochemical grid modeling, showing

that emissions from sources in the area

contribute significantly to

nonattainment in, or interfere with

maintenance by, any other States with

respect to the NAAQS (see section

110(a)(2)(D)). The USEPA has authority

under sections 1 10(a)(2)(A) and

1 10(a)(2)(D) of the Act to require such

emission reductions if necessary and

appropriate to deal with transport

situations.

Analysis of Air Quality Data

The USEPA has reviewed the ambient

air monitoring data for ozone (consistent

with the requirements contained in 40

CFR part 58 and recorded in AIRS) for

the Cleveland -Akron -Lorain ozone

nonattainment area in Ohio from the

1992 through 1995 ozone seasons. The

following ozone exceedances were

recorded for the period from 1993 to

1995 (and the average number of

expected exceedances for this three-year

period is also presented):

Cleveland -Akron -Lorain: Medina

County, 6364 Deerview Lane (1994)-

0.127 parts per million (ppm); average

expected exceedances: 0.3. Cuyahoga

County, 891 E. 152 St. (1993)-0.126

ppm, (1994) 0.127 ppm and 0.125 ppm;

average expected exceedances: 1.0. Data

for 1995 shows no new exceedances of

the ozone NAAQS were monitored in

the Cleveland -Akron -Lorain area.

On the basis of this review, USEPA

determines that the area has attained the

ozone standard during the 1993-95

period, which is the most recent threeyear time period of air quality

monitoring data, and therefore are not

required to submit a 15% emissions

reduction plan, attainment

demonstration, and a section 172(c)(9)

contingency measure plan. See the June

29, 1995, proposed rulemaking

published in the Federal Register at 60

FR 31433.

Public Comment/USEPA Response

These are the comments and

responses that relate to the

determination of attainment for the

Cleveland -Akron -Lorain area.

Comments that were received in support

of the determination are not

summarized below; only the adverse

comments are summarized and

responses are provided to these

comments. No further action will be

taken on the determination of

attainment for the Dayton and Toledo

areas since those areas have already

been redesignated to attainment. In a

later part of this rulemaking comments

and responses are provided on the

ozone redesignation request for the CAL

area. Because of the potential for

overlap of comments received on the

issue of the determination of attainment

and the redesignation, USEPA hereby

incorporates by reference the responses

contained in the section below on

redesignation to the extent that they

bear on the issues involved in the

determination of attainment, and vice

versa. To the extent that comments can

be construed to bear on both rulemaking

actions, responses should be construed

to pertain to both.

(1) Comment: The determination

action has been inappropriately

segregated from the section 110(a)(2)(D)

petition submitted by the State of New

York which requested the Federal

government to assess the

implementation plans of upwind states

to determine their contribution to

nonattainment in the State of New York.

Regional Oxidant Modeling indicates

that areas to the west of the State of New

York, including the State of Ohio,

contribute to violations of the ozone

NAAQS in the northeast United States,

including the State of New York.

Therefore these areas should continue to

meet the statutory reasonable further

progress requirements set forth in the

Clean Air Act, at least until the State of

New York's section 1 10(a)(2)(D) request

has been acted on.

(1) Response: The issue of transported

emissions is not relevant to this

rulemaking action. The purpose of the

requirements of section 182(b)(1)

concerning reasonable further progress

and attainment demonstration and the

contingency measure requirements of

section 172(c)(9) as they apply to CAL

is not to address emissions from that

area that may cause or contribute to air

quality problems in downwind areas.

The purpose of those requirements as

they apply to CAL is to achieve

attainment of the standard in that area.

The issue of transported emissions is

dealt with by other provisions of the

Act, provisions that are not the subject

of this rulemaking action. USEPA has

authority, and the state has an

obligation, under section 1 10(a)(2)(A)

(in the case of intrastate areas) and

section 1 10(a)(2)(D) (in the case of

interstate areas), to address transported

emissions from upwind areas that

significantly contribute to air quality

problems in downwind areas. The

determination being made in this

rulemaking is that, as CAL has attained

the ozone standard, certain additional

Act requirements whose purpose is to

achieve attainment in the area do not

apply to them. That determination does

not mean that the area might not have

to achieve additional reductions

pursuant to other provisions of the Act

if it is determined in the future that such

reductions are necessary to deal with

transport from the CAL area to

downwind areas.

Currently, the issue of transported

ozone and ozone precursors is being

addressed by the Ozone Transport

Assessment Group (OTAG) which is

composed of Industry, Environmental

Groups, Federal Government, State

Governments (including the State of

Ohio), and Local Governments from the

Midwest and Eastern Regions. OTAG is

performing ozone modeling to

determine how ozone transport can be

addressed on a regional basis. After this

assessment is completed, The United

States Environmental Protection Agency

(USEPA) anticipates using its authority

under sections 1 10(a)(2)(A) and

1 10(a)(2)(D) of the Act to require

emissions reductions where appropriate

based on this assessment and any other

relevant information.

(2) Comment: The determination of

attainment fails to meet the purpose,

intent and spirit of the Clean Air Act by

not protecting and enhancing the

quality of the Nation's air resources so

as to promote the public health and

welfare and the productive capacity of

its population. The ozone standard has

been shown to be inadequate to protect

public health. The American Lung

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Association has provided ample

evidence and new studies continue to

confirm this. It is very clear to many

people living here that the air is

polluted and adversely affecting

people's health. Furthermore, no one

has demonstrated that the bad air and

high pollution levels in Ohio's

nonattainment areas are not adversely

affecting the health of those downwind.

(2) Response: The determination of

attainment is based on ozone

monitoring data collected in the

Cleveland -Akron -Lorain area. These

data continue to show that the area has

attained the standard. In a separate part

of this rulemaking the ozone

redesignation request is discussed. This

request contains a maintenance plan

which will provide for continued

maintenance of the standard into the

future. The maintenance plan is

unaffected by the determination of

attainment that finds that the 15% plan,

attainment demonstration, and section

172(c)(9) contingency measures are no

longer required.

USEPA is also reviewing the current

ozone standard to see whether it should

be revised in order to better protect the

public health. Until the current NAAQS

is revised, the current NAAQS of .12

parts per million is the appropriate

standard against which to assess plans

and measure attainment.

(3) Comment: The piecemeal

approach which USEPA is taking to

ozone attainment and redesignation is

promoting backsliding and encouraging

doing the least possible to protect public

health and actually clean up the air. A

holistic approach to solving

environmental problems is always

needed. This is no exception. Reviewing

emissions inventories in one

rulemaking, NOx in another, the SIP in

another, Reasonable Further Progress in

another, transportation modeling in

another, etc. is a methodology which

effectively puts blinders on and

prevents complete analysis of

interdependence aspects. Furthermore

this piecemeal approach is an out-ofsequence, illogical process.

USEPA must first determine if

attainment has been reached in

accordance with the Clean Air Act's

redesignation criteria given in section

107. Without ascertaining that

attainment has actually been reached it

is premature to alleviate the

requirements for further controls or

Reasonable Further Progress. It appears

that USEPA is only applying the first

redesignation requirement that the area

has attained the NAAQS and ignoring

the other requirements for redesignation

and proceeding to relax the standards.

(3) Response: Nothing requires that all

of the SIP revisions submitted by the

State be reviewed together. The CAA

has differing submittal dates for the SIPs

and requires USEPA to act on each

within a specific time period of its

submittal. This would probably not

allow adequate time for USEPA to

process all of the submittals at once,

given that some of the submittals were

submitted years apart from each other.

Where possible USEPA has sought to

consolidate responses to submittals but

the CAA is not always conducive to this

approach. The determination of

attainment is not the same as a

redesignation to attainment, and

therefore the requirements of section

107, which apply to redesignations to

attainment are not applicable. See also

the response to comments below. The

determination of attainment is only

based on the area's ozone monitoring

data. USEPA has decided to address the

determination of attainment and the

State's ozone redesignation request for

Cleveland -Akron -Lorain together in this

Federal Register action. This

rulemaking does not circumvent the

redesignation requirements. See the

discussion in the redesignation

rulemaking, below, and in USEPA's

Responses to Comments in its

Determination of Attainment of Ozone

Standard for Salt Lake and Davis

Counties, Utah 60 FR 36723 (July 18,

1995). USEPA in this portion of the

rulemaking, its determination of

attainment, is simply making a factual

determination that since CAL is

attaining the standard, certain

provisions of the CAA, whose express

purpose is to achieve attainment of the

standard, do not require SIP revisions.

In the redesignation portion of this

rulemaking, USEPA explains its basis

for concluding that CAL has met the

requirements of section 107 for

redesignation to attainment.

With respect to the determination of

attainment, USEPA set forth in the June

29, 1995 notices on CAL its basis for

interpreting certain CAA requirements

as inapplicable to an area that is

attaining the ozone standard.

This interpretation is consistent with

USEPA's General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990 ("General

Preamble"), 57 FR 13,498 (April 16,

1992), which directly addressed

requirements for redesignations. Id. at

13,561-64. USEPA interpreted the

general reasonable further progress

requirement and contingency measures

as not applying to redesignation

requests because an area must have

attained the standard before it could be

redesignated to attainment, making

reasonable further progress and

contingency measures, unnecessary.

USEPA's May 10 memorandum set

forth USEPA's interpretation of the

requirements of CAA sections 172(c)(9)

and 182(b)(1)(A), with respect to ozone

nonattainment areas that have achieved

the ozone NAAQS. USEPA explained

that because the purpose of those

requirements has already been fulfilled

for areas that have attained the standard,

the requirements do not apply to those

areas for as long as they stay in

attainment. It further explained that this

interpretation is consistent with

USEPA's interpretation of the general

reasonable further progress

requirements and section 172(c)(9)

contingency measure requirements with

respect to redesignation requests as set

forth in its General Preamble, and with

related USEPA guidance on the

procedures to be used when USEPA is

processing redesignation requests.

USEPA has concluded that Congress

included the 15 percent plan as a

specification of "reasonable further

progress". Section 182(b)(1) is entitled

"Plan provisions for reasonable further

progress." The heading's reference to

"reasonable further progress" indicates

Congress' overall intent in enacting the

provision. The term "reasonable further

progress" is defined as "such annual

incremental reductions in emissions of

the relevant air pollutant as are required

by this part or may reasonably be

required by (USEPA) for the purpose of

ensuring attainment of the applicable

(NAAQS) by the applicable date." 42

U.S.C. section 7501(1). This definition

applies for "the purposes of * * * part"

D of Title I of the CAA, which includes

section 182(b). Id. Thus, the term

"reasonable further progress" requires

only such reductions in emissions as are

necessary to attain the NAAQS by the

attainment date and no more. 42 U.S.C.

section 7501(1). Accordingly, USEPA

has interpreted section 182(b)(1)(A)(I)

consistent with the statutory definition

of "reasonable further progress" and

with section 182(b)(1)(A)(I)'s express

purpose of assuring progress to bring

violating areas into attainment. If an

area has in fact attained the standard,

the stated purpose of the RFP

requirement will have already been

fulfilled and USEPA does not believe

that the area need submit revisions

providing for the further emissions

reductions described in section

182(b)(1).

The legislative history expressly

supports USEPA's interpretation of

section 182(b)(1)(A)(I). In describing the

15 percent plan, the House Report

stated:

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The emissions reductions called for in this

subsection* * * provide a concrete

translation of how much an area must do to

achieve "reasonable further progress" toward

attainment of the standards, as required in

section 172 and defined in section 171. Areas

that fail, as determined by USEPA, to achieve

reasonable further progress are in violation of

the Act.

H.R. Rep. no. 490, 101st Cong., 2d Sess.,

pt. 1 (1990) at 236. Thus, Congress

contemplated that the requirements of

section 182(b)(1)(A)(I) were simply a

specification of the more general

reasonable further progress

requirements of the Act, with the same

goals and definition.

Moreover, USEPA's interpretation of

the requirements of section

182(b)(1)(A)(I) is consistent with its

interpretation of the general reasonable

further progress requirements of CAA

section 172.

USEPA has also determined that

section 172 (c)(9), 42 U.S.C. section

7502(c)(9) does not require a

contingency measures plan for an area

such as CAL, which has attained the

standard. The contingency measures

plan is required for an area which "fails

to make reasonable further progress, or

to attain the (NAAQS) by the attainment

date * * *" 42 U.S.C. section

7502(c)(9). If, as USEPA has determined

with respect to CAL, an area has already

attained the standard, then by definition

such an area is not one to which

contingency measures apply. There

simply is no failure to attain or make

progress for which additional measures

need be contingent. However, as with

section 182(b)(1)(A)(I), USEPA

interprets section 172(c)(9)'s

requirements to be applicable to areas

that lapse back into violation prior to

redesignation, and which therefore need

additional progress toward attainment.

Moreover, USEPA's interpretation of

172(c)(9) is consistent with its

interpretation of these requirements in

the context ofredesignation requests. 57

FR 13564. USEPA's interpretation also

vindicates the policy objective of

reducing the burden on states and

sources of adopting and implementing

additional control measures that are not

necessary to attain the standard.

(4) Comment: The number of "close

calls" and the use of voluntary measures

to reduce ozone raises real questions

about the overall air quality. Modeling

would answer some of these questions

and give a truer picture of what the air

is really like. Some initial analysis of

the weather patterns in 1995 indicates

that they may be similar to 1988, a

supposedly "unusually hot, dry

summer" when numerous exceedances

were recorded. In fact, the weather in

Ohio in 1988 or thus far in 1995 is not

all that unusual. Even higher

temperature have been recorded. It can

be expected that there will be more

exceedances, unless there are reductions

in ozone precursor emissions.

USEPA policy (September 4, 1992,

procedures for processing requests to

redesignate areas to attainment, from

John Calcagni) states that data from the

monitors be from areas of highest

concentration and that modeling may be

necessary to determine the

representativeness of the monitor data.

(4) Response: While voluntary

measures were used in Cleveland during

the summer of 1995 to involve the

community in keeping their air clean,

the Ohio Environmental Protection

Agency (OEPA) did not claim that this

measure was responsible for the

Cleveland area attaining the NAAQS.

Ohio's request claimed that the

improvement in air quality was due to

permanent and enforceable measures,

namely the Federal Motor Vehicle

Emissions Control Program and the

Federal fuel volatility requirements that

reduced the emissions from gasoline. In

addition, the basic automobile

inspection and maintenance program,

required as a part of the carbon

monoxide SIP, would also have

provided volatile organic compound

(VOC), and oxide of nitrogen (NOx)

emissions reductions in the area, as a

side benefit. These measures resulted in

the area's VOC emissions decreasing by

about 14 percent from 1990 to 1994,

enabling the area to reach attainment of

the ozone NAAQS.

USEPA policy on the determination of

attainment is provided in a May 10,

1995, memorandum from John S. Seitz,

Director of the Office of Air Quality

Planning and Standards. This

memorandum sets forth USEPA's

interpretation of certain requirements of

subpart 2 of part D of title I of the Clean

Air Act as they relate to ozone

nonattainment areas that are meeting

the ozone NAAQS. The USEPA believes

it is reasonable to interpret provisions

regarding RFP and attainment

demonstrations, along with the related

requirements, so as not to require SIP

submissions if an ozone nonattainment

area subject to those requirements is in

fact attaining the ozone standard (i.e.,

attainment of the NAAQS is

demonstrated with 3 consecutive years

of complete, quality-assured air quality

monitoring data). The USEPA has

previously interpreted the general

provisions of subpart 1 of part D of title

I (section 171 and 172) so as not to

require the submissions of SIP revisions

concerning RFP, attainment

demonstrations, or contingency

measures, and USEPA believes it is

appropriate to interpret the ozonespecific provisions of subpart 2 in the

same manner. This is further discussed

under section I covering the background

on the determination of attainment.

The determination of attainment is

based only on ozone monitoring data for

the area. The data for at least the last

four years show that the area has

achieved attainment. We believe that

the monitoring data is adequate and

representative of the area and that

modeling is not necessary to show

attainment. These data show that the

area is in attainment and the monitoring

data for 1995 show that no exceedances

were monitored in the entire ClevelandAkron-Lorain area. This shows that the

provisions related to submitting a SIP

revision to bring an area into attainment

of the ozone NAAQS, such as the

attainment demonstration, RFP, and

contingency measures requirements are

not necessary since the area is already

in attainment of the ozone NAAQS.

The weather in 1995 was more

conducive toward forming ozone in

many parts of the Country. Even though

this was the case no exceedances were

monitored at any of the monitors in the

CAL area showing that the area has

reduced its emissions to a level that has

brought the CAL area into attainment of

the ozone NAAQS.

(5) Comment: The Southwestern

Pennsylvania Growth Alliance (Growth

Alliance) is concerned that the

redesignation of the Cleveland -AkronLorain area could adversely affect both

the economy and air quality in

southwestern Pennsylvania, and it feels

that action on the applications from

these regions should be suspended until

a more comprehensive national solution

to interstate transport of ozone and

ozone precursors is developed and

implemented. The Growth Alliance

believes that Southwestern

Pennsylvania is being unfairly

disadvantaged compared to neighboring

states by the requirements created by

the Clean Air Act, by USEPA, and by

the Northeast Ozone Transport

Commission.

(5) Response: USEPA's proposed

action to determine that the ClevelandAkron-Lorain area has reached

attainment and that it is not necessary

for it to have an attainment

demonstration, 15% rate of reduction

plan, and a contingency plan is different

from redesignating the ClevelandAkron-Lorain area as an attainment area

for ozone. In order for USEPA to make

a determination concerning the 15%

plan and other requirements, it is only

necessary to show that the area has

attained the ozone standard through

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monitoring data. In order to be

redesignated from nonattainment to

attainment the area must meet the five

redesignation requirements of section

107 of the CAA. One of the five

redesignation requirements is that the

area have met all of the SIP

requirements applicable to the area. A

determination of attainment renders

some of those requirements as

inapplicable, based on the area attaining

the standard, but the area would still

have to meet the remaining applicable

SIP requirements before it could satisfy

part of the requirements for

redesignation. The ozone redesignation

request for Cleveland -Akron -Lorain is

being addressed in a separate part of

this same Federal Register action. A

discussion of the comments and

responses received on the redesignation

is given in that part of this action. In

order for the CAL area to be

redesignated from nonattainment to

attainment it would have to meet all of

the applicable redesignation

requirements. If an area meets the

criteria for redesignation nothing in the

CAA suggests that redesignations

should be delayed. Any issue regarding

transport of ozone and its precursors

can and is expected to be dealt with

through the Ozone Transport and

Assessment Group (OTAG) and

USEPA's authority under section 110

(a)(2)(A) and (a)(2)(D) of the Act. See

also Response to comment 2.

Determination Conclusion

The USEPA has determined that the

Cleveland -Akron -Lorain (which

includes the Counties of Ashtabula,

Cuyahoga, Geauga, Lake, Lorain,

Medina, Portage and Summit) has

attained the ozone standard and

continues to attain the standard at this

time.

As a consequence of this

determination that the ClevelandAkron-Lorain ozone nonattainment area

has attained the ozone standard, the

requirements of section 182(b)(1)

concerning the submission of the 15

percent plan and ozone attainment

demonstration and the requirements of

section 172(c)(9) concerning

contingency measures are not applicable

to the Cleveland -Akron -Lorain area.

Additionally since this determination is

occurring simultaneously with the

ozone redesignation to attainment, the

determination will not be revoked in the

event of a violation. Rather, in the event

of a violation, the contingency measures

in the approved maintenance plan

would be triggered by a violation.

Ozone Redesignation Request

I. Background

On November 14, 1994, the OEPA

submitted to the USEPA a request for

redesignation to attainment for ozone

for the CAL area of Lorain, Cuyahoga,

Lake, Ashtabula, Geauga, Medina,

Summit and Portage. Additional

information on the State public hearing

and response to comments was

submitted to USEPA on February 22,

1995. The redesignation requests were

supported by technical information

demonstrating that the requirements of

section 107(d)(3)(E) of the Clean Air Act

Amendments (CAAA) were met. On

June 15, 1995, a notice was published in

the Federal Register (60 FR 31433)

which proposed approval of the

redesignation requests to attainment for

ozone and the maintenance plans for the

Ohio CAL moderate ozone

nonattainment area counties.

I. Summary of Proposed Rulemaking

The proposed rulemaking detailed

how the State submittal fulfilled the

redesignation requirements of the

CAAA. Specifically, section 107(d)(3)(E)

provides for redesignation if: (i) The

Administrator determines that the area

has attained the National Ambient Air

Quality Standards (NAAQS); (ii) The

Administrator has fully approved the

applicable implementation plan for the

area under section 110(k); (iii) The

Administrator determines that the

improvement in air quality is due to

permanent and enforceable reductions

in emissions resulting from

implementation of the applicable

implementation plan and applicable

Federal air pollutant control regulations

and other permanent and enforceable

reductions; (iv) The Administrator has

fully approved a maintenance plan for

the area as meeting the requirements of

section 175(A); and (v) the State

containing such area has met all

requirements applicable to the area

under section 110 and Part D.

Included in the State submittal was a

maintenance plan. A component of the

maintenance plan is the maintenance

demonstration which shows that the

level of emissions projected out 10 years

will not exceed the attainment year

inventory. The proposed rulemaking

presented summary tables of Volatile

Organic Compounds (VOC) emissions,

and NOx emissions projections for the

CAL area counties. The OEPA has

revised the base year and projected year

inventories numbers in response to

comments made by Region 5. The VOC

and NOx point source emissions

projections for the year 2000 were

estimated by USEPA based on an

average growth rate for the 1996 to 2006

period. These estimates show that the

total emissions in the area are expected

to remain below the attainment level of

emissions. In addition, the NOx point

source emission projections do not

account for emission reductions due to

the Title IV Acid Rain requirements of

the CAA, which would further reduce

NOx emissions in the area. The changes

did not affect the State's ability to

demonstrate maintenance. The revised

tables are presented below.

SUMMARY OF VOC EMISSIONS

[Tons/day]

1990 base 1993 attain 1996 pro- 2000 pro- 2006 pro- jected jected jected

P o int .......................................................................................................... 82 .2 2 75 .75 78 .5 5 8 2 .44 88 .6 3

Area .......................................................................................................... 201.05 201.37 201.45 201.63 200.86

M o b ile ....................................................................................................... 2 4 8 .4 18 1 .4 13 1 .2 78 .4 4 8 .8

T ota ls ........................................................................................................ 53 1.7 4 58 .5 4 1 1.2 3 62 .5 33 8 .3

SUMMARY OF NO× EMISSIONS

[Tons/day]

1990 base 1993 attain 1996 pro- 2000 pro- 2006 pro- jected jected jected

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SUMMARY OF NOx EMISSIONS-Continued

[Tons/day]

A re a ..........................................................................................................

M o b ile .......................................................................................................

T o ta ls ........................................................................................................

Additionally, the VOC and NOx

emissions projected for the year 2006 in

the above tables are considered

emission budgets for purposes of

transportation conformity.

The proposal stated that final

approval of the CAL moderate

nonattainment area counties was

contingent upon final approval of VOC

reasonably available control technology

(RACT) rules, the 1990 Base-year

inventory, the section 182(f) NOx

waiver request, the 182(b)(1) reasonable

further progress plan (15% plan), the

182(b)(4) inspection and maintenance

plan, the attainment demonstration, and

the 172(c)(9) contingency measures. All

of these requirements have either been

met through full approval of state

submittals or have been determined in

this rulemaking to be no longer

applicable. The final approval of most of

the VOC RACT rules were published on

March 23, 1995 (60 FR 15235), and

became effective on May 22, 1995. Final

approval of RACT rules for major

stationary sources not specifically

covered by a USEPA Control Technique

Guideline for RACT became effective on

October 31, 1995, in a letter notice

action from Regional Administrator

Adamkus to the individual companies.

A formal announcement of this was

made in the Federal Register. The Baseyear inventories were approved on

December 7, 1995 (60 FR 62737) and

effective on January 8, 1996. The NOx

waiver request was approved on July 13,

1995 (60 FR 36051) and became

effective on August 14, 1995. The I/M

plan was approved on April 4, 1995 (60

FR 16989) and became effective on June

3, 1995.

A May 10, 1995, memorandum from

John S. Seitz, Director, Office of Air

Quality Planning and Standards,

entitled "Reasonable Further Progress,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard", states

that upon a determination made by

USEPA that an area has attained the

NAAQS for ozone, that area need not

submit SIP revisions concerning

reasonable further progress (15%) plan,

182(b)(1) attainment demonstrations,

and 172(c)(9) contingency measures for

as long as the area continues to meet the

standard. Such a determination is made

for the CAL area in a separate part of

this rulemaking. Consequently, final

approval of the redesignation request for

the CAL counties ofLorain, Cuyahoga,

Lake, Ashtabula, Geauga, Medina,

Summit, and Portage is no longer

dependent upon approval of the 15%

plan, attainment demonstration, or

section 172(c)(9) contingency measures.

Public Comment/USEPA Response

In response to the request for written

comments on the proposed rulemaking,

USEPA received about 50 comment

letters. Letters were received from

concerned citizens, environmental

groups, and industry. Over 30 of these

letters were adverse comments on the

propose rulemaking. The remaining

comments were in support of the

proposed rule. The following

summarizes the adverse comments

received and responds to them. The

comments in support of the rule are not

summarized below, but are available for

public review in USEPA's docket. In an

earlier part of this rulemaking

comments and responses are provided

on the determination of attainment for

the CAL area. To the extent that any

comments under the determination

section also apply to the ozone

redesignation action for the CAL area

they are also incorporated into the

comments/responses under this section

covering the ozone redesignation action

for the CAL area.

(1) Comment: Many of the

commenters are opposed to the

redesignation of the Cleveland -AkronLorain area to attainment on the

grounds that they believe that more

stringent emission control requirements

and sanctions are needed to avoid

unsafe pollution levels. These

commenters believe that the benefits of

health and environmental

improvements to be achieved through

stricter standards outweigh the

increased costs of emission controls on

industry and on the public. Several

commenters state that the ozone

standard itself should be tightened,

expressing concerns over long term

health impacts, impacts on children and

the elderly, and impacts on smog levels

still visible in the area.

(1) Response: The NAAQS were

established to protect the public's health

and welfare with an adequate margin of

safety. Although additional reductions

in VOCs may provide further health

improvements, it is noted that the issue

here is attainment of the ozone

standard. The State of Ohio has met the

requirements for the redesignation of

the Cleveland -Akron -Lorain area to

attainment of the ozone standard,

including attainment of the ozone

NAAQS. It is not clear that further

reduction in ozone levels will provide

significant health improvements.

With regard to a revised ozone

standard, it should be noted that the

USEPA along with States and science

advisors, is the process of reconsidering

the ozone standard. If the ozone

standard is revised a number of ozone

attainment and nonattainment areas

may be affected. A redesignation of

Cleveland -Akron -Lorain to attainment at

this time will not prevent this area from

being redesignated to nonattainment if it

is subsequently found to be in violation

of a revised ozone standard. Until the

NAAQS is revised, however, the 0.12

ppm NAAQS for ozone is the only

appropriate standard against which to

judge attainment.

(2) Comment: People in the

Cleveland -Akron -Lorain area suffer from

sinus problems, and increased

occurrence of asthma and other lifethreatening respiratory illnesses that are

directly attributable to air pollution. The

air is often oppressive and really

unbreathable, especially in the kind of

hot, humid weather that the area has

experienced this summer. Infants and

the elderly are affected by the higher

tolerance of ozone levels now in force.

We see people who become ill from

polluted air whenever the ozone level

rises. The current ozone standard is not

health based. We want to breathe

cleaner air. We are opposed to the

redesignation of Cleveland -AkronLorain because of the asthma epidemic

and increasing number of asthma

deaths. The pervasiveness of the health

threat posed far outweighs the

inhibition of industrial expansion and

limits on smokestack pollution.

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(2) Response: The current ozone

standard is a health based standard. It

was recently reviewed and reaffirmed,

see 58 FR 13008 (March 9, 1995).

However, the ozone NAAQS is currently

being reviewed to see if the standard

should be changed and what the new

standard would be, see 59 FR 5164

(February 3, 1994). A staff report was

recently released that discusses this

review of the ozone NAAQS. But unless

and until the ozone NAAQS is changed

- it remains the standard to use for

comparison against ozone monitoring

data in the area. Those data indicates

attainment of the ozone standard.

(3) Comment: In Cleveland -AkronLorain the air smells. There are also foul

odors coming from factories during the

early morning hours that are waking us

up and making us nauseated.

(3) Response: At the Federal level the

Clean Air Act (CAA) does not provide

specific requirements for companies to

control odors. Odor is not an issue

pertinent to the ozone standard or the

attainment of that standard. We have,

however, made our enforcement group

aware of these complaints to see what

can be done. Further, existing facilities

must continue to operate existing air

pollution control equipment in

accordance with applicable rules,

regulations and permits, and sources

that are problematic in terms of posing

a nuisance to area residents may be

referred to the State and local

environmental enforcement staff for

investigation.

(4) Comment: Several commenters

expressed concern that trucks and buses

pollute the air by blowing out black

smoke and that cleaning up emissions

from cars is not sufficient.

(4) Response: The USEPA agrees that

cleaning up emissions from cars is not

enough. Trucks and buses also produce

significant pollution. The USEPA has

set stringent standards for new heavy

duty diesel engines beginning with the

1988 model year, with additional

improvements to be made with the 1991

and 1994 model year engines. The black

smoke from diesel trucks and buses is

particulate matter which is a visible air

pollutant. Trucks and buses also

contribute to ozone air pollution

because they produce hydrocarbons and

NOx. The NOx emission standard has

been tightened from 10.7 grams per

brake horsepower per hour (g/bhp-hr) in

1985 to 6.0 in 1988 and 5.0 in 1991. The

hydrocarbon emission rate for diesel

engines is set at 1.3 g/bhp-hr. Particulate

emission standards have been tightened

from 0.60 g/bhp-hr in 1988 to 0.10 g/

bhp-hr in 1994 for all new heavy duty

engines. As the older trucks and buses

are replaced by the newer, cleaner

engines the pollution from these

vehicles will be significantly reduced.

In October 1993, the USEPA required

the use of a cleaner diesel fuel

throughout the country. Diesel fuel used

in on-highway compression ignition

engines contains less sulphur than

earlier fuels. Lower sulphur reduces the

amount of indirect particulate and

improves the operation of new diesel

engines using particulate trap oxidizers

to control direct particulate emissions. It

is estimated that the use of low-sulphur

diesel fuel reduces direct and indirect

particulate by approximately 28 percent

from the baseline fuel. Air quality

impacts of fuel controls are projected to

reduce particulate by 2.3 to 8.3

micrograms per cubic meter and

sulphur dioxide by 7 to 16 micrograms

per cubic meter in a metropolitan area

the size of Cleveland -Akron -Lorain.

The State of Ohio will implement its

inspection and maintenance (JIM)

program beginning in 1996. The

authorizing State legislation for the IM

program requires the testing of diesel

powered vehicles up to 10,000 pounds

for opacity (smoke). Buses are also

required to meet emission standards for

smoke, hydrocarbons and carbon

monoxide.

The reductions in hydrocarbon, and

NOx emissions from trucks and buses

will contribute to maintaining the ozone

standard and protecting the public's

health. Particulate issues are separate

from ozone issues and are not relevant

for consideration here. While the

standards for particulate emissions will

greatly reduce the amount of smoke

emitted from trucks and busses, it is not

expected to have a significant effect on

ozone levels and as a result is not

pertinent to an ozone redesignation

request.

(5) Comment: Several commenters

have expressed confusion over the

relationship between the proposed

redesignation and the protection of the

"ozone layer." One commenter in

particular requests that the USEPA

explain the "whole ozone picture."

(5) Response: At the very outset of

this response, it must be noted that

"ozone" referred to in the proposed

redesignation is chemically identical to

the "ozone" referred to in the term

"ozone layer." In both situations ozone

refers to a gas composed of molecules

with three oxygen atoms each.

In the case of the "ozone layer", one

is referring to the layer of the Earth's

stratosphere where ozone is found in

relatively high concentrations. Ozone in

this layer is formed through the reaction

of oxygen molecules (two oxygen atoms

each) and high energy electromagnetic

radiation from the Sun. Oxygen atoms

are freed when oxygen molecules are

impacted by the high energy radiation.

Some of these freed oxygen atoms

combine with oxygen molecules to form

ozone molecules. Within this layer of

the atmosphere, ozone is a significant

absorber of high energy ultraviolet

radiation from the Sun. If this

ultraviolet radiation reached the surface

of the earth in sufficient intensity,

significant, undesirable biological

damage could result to surface

organisms. Concerns over potential

damage to the protective ozone layer has

led to efforts to reduce the emissions of

gasses which are believed to directly or

indirectly eliminate ozone molecules.

In the case of the proposed of

Cleveland -Akron -Lorain, one is dealing

with ozone found in the lowest levels of

the atmosphere. At this level of the

atmosphere, high ozone levels are not

typically found (natural processes can

lead to peak ozone levels of 0.04 to 0.06

parts per million, well below the ozone

standard of 0.12 parts per million). Manmade (anthropogenic) emissions of

volatile organic compounds, oxides of

nitrogen, and other gases, in the

presence of sunlight and relatively

warm temperatures, can lead to ozone

formation of considerably higher

concentrations. This chemical formation

process involves hundreds of chemical

reactions and differs significantly from

the process that forms ozone in the

stratosphere. There is no significant

exchange of ozone between the lower

atmosphere, where high ozone levels are

undesirable, and the stratosphere, where

high ozone levels are desirable for the

protection of life on earth.

Ozone concentrations in excess of the

ozone standard are shown, based on

numerous health studies and correlation

of health data and monitored ozone

concentrations, to be damaging to

human health, particularly causing

problems with the human respiratory

system. For this reason, ozone has been

listed as a primary pollutant with a

defined health-based standard.

(6) Comment: The air quality in

Cleveland -Akron -Lorain is lousy and

there has been no improvement in the

quality of our air. If anything, I would

say things are worse.

(6) Response: With respect to ozone

levels in the CAL, the air quality has

improved significantly since the late

1980's. During 1988 there were a

number of monitored readings above

.150 parts per million in the area.

During the last four years the highest

concentration monitored was .127 ppm.

CAL achieved attainment of the ozone

standard at the end of 1994, by

monitoring attainment of the ozone

NAAQS during the three previous years

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(which are 1992, 1993, and 1994). The

area continued to attain the standard

since that time.

Section 107(d)(3)(E)(iii) requires that,

for the USEPA to approve a

redesignation, it must determine that

the improvement in air quality is due to

permanent and enforceable reductions

in emissions. The September Calcagni

memorandum, at page 4, clarifies this

requirement by stating that

"[a]ttainment resulting from temporary

reductions in emission rates (e.g.,

reduced production or shutdown due to

temporary adverse economic

conditions) or unusually favorable

meteorology would not qualify as an air

quality improvement due to permanent

and enforceable emission reductions."

As discussed in the June 15, 1995

Federal Register proposed rulemaking,

the State of Ohio demonstrated that

permanent and enforceable emission

reductions are responsible for the recent

improvement in air quality. This

demonstration was accomplished

through an estimate of the reductions

(from 1990 to 1993) of VOC achieved

through Federal measures such as the

Federal Motor Vehicle Emissions

Control Program (FMVECP) and fuel

volatility rules implemented from 1990-

1993, as suggested by the September

Calcagni memorandum.

Volatile Organic Compound (VOC)

emissions are one of the precursors that

help to form ozone. The total emission

reductions achieved from 1990 to 1993

were 65 tons of VOC per day. This is a

14 percent reduction in VOCs, which

corresponds to the drop in ozone

concentrations in the area. These

emission reductions were primarily the

result of the FMVECP, Automobile

Inspection and Maintenance program,

and Gasoline Reid Vapor Pressure (RVP)

reductions from 10.5 pounds per square

inch (psi) in 1989, to 9.0 psi in 1992.

The VOC emissions are expected to

continue to decrease in the future due

to the Federal Motor Vehicle Emissions

Control Program, Stage II vapor recovery

program, and the Enhanced Automobile

Inspection and Maintenance Program.

The NOx emissions are also expected to

decrease in the future due to the Federal

Motor Vehicle Emissions Control

Program and the Enhanced Automobile

Inspection and Maintenance Program.

(7) Comment: I am sure you are being

bombarded with requests to change the

designation to attainment, on the

grounds that the region will be hurt

economically if this is not done. To me,

such arguments ignore two fundamental

points. First, there is not evidence that

stricter environmental regulations hurt

the economy. A clean environment does

not mean less jobs, it can mean more

jobs. In fact, there is evidence that

indicates the opposite. Second, even if

this is true, we would be selling our

health, and the health of our world and

our children, for economic benefit. This

does not seem a good trade. There is

entirely too much emphasis on business

economic considerations over health

considerations. The cost to industry

may be high, but what about the cost to

pay for increased health problems? Air

pollution results in hundreds of

thousands of dollars worth of asthma

illnesses and deaths each week. This

should be spent on pollution controls

instead.

It would be reprehensible if the

agency charged with the protection of

health and the environment capitulated

to vested, self-serving interests that

place the almighty dollar ahead of

human health and welfare. The

redesignation request should not be

approved.

(7) Response: The approval of the

ozone redesignation request for

Cleveland -Akron -Lorain is based on the

area meeting the five requirements of

section 107 of the CAA. It is not based

on economic grounds. The first of the

five requirements of section 107 is that

the area has attained the National

Ambient Air Quality Standard for

ozone, which it has. The NAAQS for

ozone is set at a level designed to

protect the public's health and

monitoring data show that the area is

meeting the standard.

(8) Comment: One commenter,

although not expressing opposition to

the proposed redesignation, does

express opposition to the approach used

in the Cleveland -Akron -Lorain area of

trying to get the public to reduce

emissions only during critical high

ozone potential periods. The commenter

favors a permanent curtailment of

emissions so that people with related

health risks, such as asthma, will not

have to seek the shelter of airconditioned places during such periods.

(8) Response: It is agreed that, where

possible, permanent emission controls

should be implemented to minimize

ozone levels and to attain the ozone

standard. It should be recognized that

many permanent emission controls,

such as reasonably available control

technology, transportation control

measures, and vehicle inspection/

maintenance, have been implemented in

the Cleveland -Akron -Lorain area. The

maintenance plan takes into account

that these emission controls will be

maintained despite the redesignation of

the area as an area in attainment of the

ozone standard. The permanent and

enforceable emissions reductions are

discussed under comment number six,

and in comment 4 in the determination

of attainment section.

(9) Comment: A number of

commenters believed the air monitoring

in the area was inadequate. Several

concerns were noted: Commenters

stated that there is presently insufficient

monitoring both in terms of what is

monitored and the number of

monitoring stations (specifically, a lack

of ozone monitoring in Geauga County

was cited by several commenters).

(9) Response: The requirements for

ambient air quality monitoring are

detailed in 40 CFR part 58. The federal

requirements include: The use of

approved air monitoring equipment;

quality assurance of monitoring data;

appropriate network design; operating

schedule; and siting of individual

monitors. In determining attainment or

nonattainment status of an area for the

NAAQS for ozone, only air monitors

sampling for ozone are relevant.

Monitoring for precursors of ozone

(such as VOCs and NOx) can be

beneficial in understanding ozone

formation. For determining the air

quality concentrations of ozone in an

area and determining attainment of the

ozone standard, ambient ozone monitors

are considered.

The Cleveland -Akron -Lorain ozone

monitoring network consists of ten

ambient ozone monitors: three in

Cuyahoga County, two in Lake County,

and one each in Ashtabula, Lorain,

Medina, Portage and Summit Counties.

The monitoring network is reviewed by

the USEPA. The individual monitoring

sites meet the federal monitoring

requirements. The commenters are

correct in noting that Geauga County is

downwind of the urban area and in a

location that would be expected to

receive high ozone concentrations.

However, the USEPA believes that

decisions on the air quality can be made

with the current network because the

monitors cover an adequate geographic

area to be representative of the

nonattainment area. Ozone monitors are

located in every county that is

contiguous to Geauga County. All of

these monitors are in attainment of the

ozone NAAQS, including Lake County

which is also downwind of the main

urban area and would be expected to

have similar air quality to Geauga

County. Based on this USEPA believes

that Geauga County is also in attainment

of the ozone NAAQS.

(10) Comment: One commenter

believed that the original readings that

brought about the "bad rating" were

taken in an industrial area surrounded

by freeways inundated with Cleveland

Browns fans. The commenter believed

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the monitoring readings to be

unrepresentative.

(10) Response: The highest ozone

readings are not typically found in

industrial areas or near freeways.

Industries and traffic produce

hydrocarbons (also called volatile

organic compounds) and NOx pollution

that react in the presence of sunlight to

form ozone. This reaction takes place

over a period of several hours and thus

the highest ozone concentrations are

typically found 20 to 40 miles in the

downwind direction. The USEPA

considers all valid, quality assured

monitoring data in the area in assessing

the air quality. The moderate ozone

nonattainment designation was based

on 3 years of ozone monitoring data

(1987-1989) and was based on the

fourth highest reading (.157 the design

value) at the monitoring site in Akron,

Ohio. Other ozone monitoring sites in

the area also had ozone concentrations

in the range of a moderate classification.

For example, the site at Jefferson

Elementary School in Eastlake, Ohio

had a design value of .152 for the 1987-

1989 time period. The ozone monitoring

data now shows an improvement in air

quality that demonstrates attainment of

the health based ozone standard. All air

monitoring data is available to the

public from the national USEPA

Aerometric Information and Retrieval

System (AIRS) data bank.

(11) Comment: The fact that this

region did not adopt reformulated, less

ozone-producing gasoline with fewer

VOC's for summertime use clearly

demonstrates the lack of commitment to

clean air.

(11) Response: While the ClevelandAkron-Lorain area was not required to

adopted reformulated gasoline in order

to be redesignated, they did choose an

Enhanced Automobile Inspection and

Maintenance program (I/M) as a

maintenance measure to be

implemented in the area. This program

was chosen as the most cost effective

program that the area could use for

maintaining the standard while still

providing room for growth in the area.

(12) Corn ment: Several commenters

expressed dissatisfaction with the

inspection and maintenance program for

automobiles. Some were concerned

about gaps in the I/M program that

reduced the effectiveness. One

commenter suggested other pollution

reduction measures. A commenter

believed that the vehicle inspection and

maintenance program was not effective.

The commenter believed that the I/M

funds would be better spent on

enforcing the speed limit, getting rid of

high polluting vehicles, doing more on

"Ozone Action Days" or making these

mandatory, and giving incentives for

sharing rides. One commenter was

against the more stringent IM program.

(12) Response: The IM program for

automobiles is a very cost-effective

program for reducing pollution. Studies

show that a small percentage of vehicles

are producing a large portion of the

pollution in a metropolitan area.

Automobiles that are not wellmaintained or that have pollution

control equipment that has been

disabled emit air pollution that can

increase ozone concentrations. The I/M

program will identify these automobiles

and require repairs. Compared to other

forms of pollution control, the IM

program is a low-cost alternative. The

enhanced IM program is estimated to

cost between $500 to $900 dollars per

ton of VOC pollution reduced. This

compares to a cost of approximately

$5,000 per ton for a basic program,

$5,000 to $10,000 dollars per ton of

VOC reduced for additional stationary

source controls beyond the current

RACT required in the Cleveland -AkronLorain area. The USEPA agrees that an

effective IM program is important. The

enhanced IM program adopted by Ohio

and which began in January 1996, is the

best and most cost effective testing

program recommended by the USEPA.

An additional feature of the State's

enhanced IM program, designed to

improve repair-effectiveness, is the

requirement that automobile technicians

become certified to repair vehicles

which fail the test. The auto technician

training program requires technicians to

undergo a training program to ensure

they are able to perform repairs on

current new-technology vehicles and

vehicles of the future. Technicians and

repair facilities will be graded on the

effectiveness of repairs and this

information will be available to the

public in order to make informed

decisions on where to take their vehicle

for repairs. This technician training and

certification program began

implementation in October 1995, and is

being supervised by the OEPA.

(13) Comment: A commenter

expresses the concern that control of

emissions from aircraft as they travel

over the area (and over the United States

in general) have not been given enough

consideration. The commenter believes

aircraft emissions must be considered

along with emissions from industries

and automobiles in the control of air

pollution.

(13) Response: It should be noted that

States, under the requirements of

section 182(a)(1) of the Clean Air Act,

have included aircraft emissions in a

base year emissions inventory for each

ozone nonattainment area. These

aircraft emissions were projected to the

10-year maintenance period in Ohio's

maintenance plan for the ClevelandAkron-Lorain area, and were shown,

along with emissions from other

sources, to not cause a projected

violation of the ozone standard.

(14) Comment: A number of

commenters were concerned that the

redesignation would affect

transportation choices and

transportation planning and would

contribute to more pollution. Concerns

were expressed about: The need for

more bike paths, the need for improved

public transit, the need to discourage

driving. Specific concern was expressed

about express lanes on 1-271 which

would impact the environment. Another

commenter had concerns about a

subway being dropped from the

transportation planning, a lack of

bicycle facilities, more interchanges and

freeways and new lane additions. There

was concern about a tollway from

Toledo to Portsmouth instead of light

rail that would be upwind of the

populated current nonattainment areas

and would add pollution to the areas.

The commenter wanted pollution

prevention through better transportation

choices.

(14) Response: The redesignation to

attainment does not negate the need for

the area to make smart transportation

choices. The transportation conformity

requirements still apply to the area as a

maintenance area. The area will need to

demonstrate that emissions are not

exceeding the mobile source emission

budget in the maintenance plan. The

Northeast Ohio Area wide Coordinating

Agency (NOACA) is the local

metropolitan planning organization for

the Cleveland -Akron -Lorain area and

performs the conformity analysis on the

transportation plan. Conformity to the

emission budget is designed to prevent

the area from increasing mobile source

emissions to the point where the air

quality standards are exceeded.

Conformity will also provide assurance

that a project will not be done if it

would cause or contribute to a violation

of the ozone NAAQS in the CAL area.

The commenters are correct in noting

that transportation measures such as

improvements in bicycle paths and

facilities and improved public transit

will contribute to better air quality by

reducing the number of automobiles and

the number of vehicle miles of travel.

The commenters are also correct in their

concerns about increasing freeway

capacity and tollways, as these types of

projects will encourage additional

vehicular traffic. The USEPA believes

that the conformity requirements will

allow the area to make local decisions

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on transportation planning while

assuring that mobile source emissions

will not increase. Increases to the

mobile source budget are only allowed

if there is an excess in the total

projected emissions for the area.

Projects such as tollways that are built

in the maintenance area would also be

subject to conformity. Tollways that are

in attainment areas are not currently

required to meet any conformity tests. It

is possible that projects of this type

could affect air quality downwind;

however, the USEPA believes that the

cleaner vehicle standards will

contribute to preventing degradation of

the air. See also the response to

comment 18.

(15) Corn m ent: Over Lake Erie there is

a gray and yellow mass of pollution.

There is also a trail of smoke that rises

from the smoke stacks of the East Lake

Electric Power plant, and the trucks and

buses are also emitting smoke. When I

am at a high point on a hill looking

down at downtown Cleveland, I can

barely see the buildings. It's as if they

are behind a cloud of dirt, smoke, and

other pollution. We need to change this.

(15) Response: USEPA has a variety of

programs addressing the commenter's

concerns. The "trail of smoke" from the

East Lake power plant is particulate

matter, which is regulated both by limits

on the mass of particulate matter and by

limits on the opacity of the plume.

Smoke from trucks and buses is being

limited by new emissions standards that

have been made achievable by new

limitations on the sulfur content of

diesel fuel. USEPA is updating its

visibility regulations to reduce the

impairment of visibility due to air

pollution. Nevertheless, USEPA

evaluates attainment of the air quality

standards based on quantitative

measurements of air pollutant

concentration. Since these

measurements indicate that the ozone

standard is being attained, USEPA must

conclude that this criterion for

redesignation is satisfied.

(16) Comment: Several commenters

are opposed to the redesignation

because they believe it will lead to less

USEPA oversight of existing emission

control regulations and, therefore, to

increased air pollution.

(16) Response: All volatile organic

compound emission control regulations

in place at the time of the redesignation

of the Cleveland -Akron -Lorain area will

remain in place unless it is ultimately

shown through photochemical

dispersion modeling that such control

measures are not necessary for

continued attainment of the ozone

standard. These regulations will

continue to be enforced by the State and

will remain federally enforceable.

(17) Cor ment: One commenter

asserted that section 107(d)(e)(E)(v)

requires that a state meet all applicable

requirements under section 110 and Part

D. While claiming that Cleveland

satisfies all 172(c) requirements, USEPA

acknowledges that some components

have not yet completed regulatory

review. 60 FR 31437.

(17) Response: All applicable

components, including those were

referred to in the proposal as pending

regulatory review, have now completed

regulatory review. The Clean Air Act

requires that the Cleveland -AkronLorain area meet all applicable

requirements before the area is

redesignated. USEPA approved the 1990

base year emissions inventory in a final

rulemaking published on December 7,

1995 (60 FR 62737). The remaining VOC

RACT rules for the area were approved

in letter notice rulemakings dated

October 31, 1995 and announced in the

Federal Register. In a separate part of

this final rulemaking USEPA

determined that the 15% plan and

contingency measures requirements are

no longer applicable to the ClevelandAkron-Lorain area. USEPA's rational for

this action is contained in the

rulemakings dated August 25, 1995 (60

FR 44277), June 29, 1995 (60 FR 33742,

and 60 FR 33781), and this final

rulemaking. As a result of these actions

the Cleveland -Akron -Lorain area has

met all of the fully approved SIP

requirements. These requirements were

met before USEPA published this final

rulemaking taking action on the

redesignation requests.

In response to the comment on the

protection of the public health. The

public's health is protected as

evidenced by the monitoring data

collected in the area. The data show that

the air quality levels are meeting the

NAAQS for ozone. These standards

were set to protect the public health and

welfare.

(18) Comment: By this proposed

approval, USEPA claims the

redesignation request relieves Ohio from

submitting SIP revisions providing

transportation and general conformity

criteria guidance.

(18) Response: USEPA in this notice

does not relieve Ohio from conformity

requirements. Rather, USEPA has

determined that those requirements will

continue to apply after the area is

redesignated, and therefore need not be

fulfilled as a condition of redesignation.

Section 176(c) of the Act requires States

to revise their SIPs to establish criteria

and procedures to ensure that Federal

actions, before they are taken, conform

to the air quality planning goals in the

applicable SIP. The requirement to

determine conformity applies to

transportation plans, programs and

projects developed, funded or approved

under Title 23 U.S.C. or the Federal

Transit Act ("transportation

conformity"), as well as to all other

Federal actions ("general conformity").

Section 176 further provides that the

conformity revisions to be submitted by

the States must be consistent with

Federal conformity regulations that the

Act required the USEPA to promulgate.

Congress provided for the State

revisions to be submitted one year after

the date of promulgation of final USEPA

conformity regulations.

The USEPA promulgated final

transportation conformity regulations on

November 24, 1993 (58 FR 62188), and

general conformity regulations on

November 30, 1993 (58 FR 63214).

These conformity rules require that

States adopt both transportation and

general conformity provisions in the SIP

for areas designated nonattainment or

subject to a maintenance plan approved

under section 175A of the Act. Pursuant

to 40 CFR 51.396 of the transportation

conformity rule and 40 CFR 51.851 of

the general conformity rule, the State of

Ohio is required to submit a SIP

revision containing transportation

conformity criteria and procedures

consistent with those established in the

Federal rule by November 25, 1994, and

November 30, 1994, respectively. Ohio

submitted transportation and general

conformity SIP revisions on August 17,

1995. The USEPA has not yet approved

the transportation conformity rules as

part of the SIP. Final rulemaking on the

general conformity rules is expected

soon.

The USEPA believes it is reasonable

to interpret the conformity requirements

as not being applicable requirements for

purposes of evaluating the redesignation

request under section 107(d). The

rationale for this is based on a

combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Act continue to apply to areas

after redesignation to attainment, since

such areas would be subject to a section

175A maintenance plan. Therefore, the

State remains obligated to adopt the

transportation and general conformity

rules even after redesignation and

would risk sanctions for failure to do so.

While redesignation of an area to

attainment enables the area to avoid

further compliance with most

requirements of section 110 and part D,

since those requirements are linked to

the nonattainment status of an area, the

conformity requirements apply to both

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nonattainment and maintenance areas.

Second, USEPA's federal conformity

rules require the performance of

conformity analyses in the absence of

state-adopted rules. Therefore, a delay

in adopting State rules does not relieve

an area from the obligation to

implement conformity requirements.

Because areas are subject to the

conformity requirements regardless of

whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet adopted, the USEPA

believes it is reasonable to view these

requirements as not being applicable

requirements for purposes of evaluating

a redesignation request.

For the reasons just discussed, the

USEPA believes that the ozone

redesignation request for the CAL area

may be approved notwithstanding the

lack of fully approved State

transportation and general conformity

rules. This policy was also exercised in

the Tampa, Florida ozone redesignation

finalized on December 7, 1995 (60 FR

62748).

(19) Comments: A commenter argued

that the submission is defective under

section 107(d)(3) because of the absence

of a complete and fully approved

implementation plan. The commenter

asserted that USEPA cannot excuse

Ohio's failure to submit required SIP

revisions coming due after the

November 15, 1994 filing of the

redesignation request. The commenter

complained that USEPA in its proposal

was illegally attempting to rectify gaps

by waiving applicability of necessary

SIP requirements, including the

requirements of 15 percent RFP,

attainment demonstration, and

contingency measures. Under section

107(d)(3)(E)(ii), a nonattainment area

may be redesignated only after USEPA

has fully approved the applicable

implementation plan for the area under

section 110(k).

Under the APA, the Administrator

may not suspend applicability of SIP

requirements except by redesignation

pursuant to 107(d)(e)(E). This can be

done only if USEPA has fully approved

the SIP under 110(k). See

107(d)(3)(E)(iii). Congress allotted

USEPA no discretion in determining

what constitutes the applicable plan,

but directed it to look at section l10(k),

which does not give the Administrator

authority to decide what constitutes the

"applicable requirements of this Act."

Under section 107(d), the Administrator

can only grant a request to redesignate

to attainment if the state has met all

applicable requirements under section

110 and Part D, and after the state has

adopted a complete implementation

plan.

(19) Response: USEPA has not

suspended or granted the CAL an

exemption from any applicable

requirements. Rather, USEPA has

interpreted the requirements of section

182(b)(1)(A)(i) and 172 (c)(9) as not being

applicable once an area has attained the

standard, as long as it continues to do

so. This is not a waiver of requirements

that by their terms clearly apply; it is a

determination that certain requirements

are written so as to be operative only if

the area is not attaining the standard.

The May 10 Policy was clear about

the consequences of the policy for

redesignations. First, it made plain that

a determination of attainment is not

tantamount to a redesignation of an area

to attainment. Attainment is only one of

the criteria set forth in 107(d)(3)(E). To

be redesignated, the State must satisfy

all of the criteria of 107(d)(3)(E),

including the requirement of a

demonstration that the improvement in

the area's air quality is due to

permanent and enforceable reductions,

and the requirements that the area have

a fully-approved SIP which meets all of

the applicable section 110 and part D

requirements, and a fully approved

maintenance plan.

Upon a determination of attainment,

however, the 182(b)(1)(A)(i)

requirements of RFP and attainment

plans, and the 172(c)(9) requirement of

contingency plans are no longer

considered applicable requirements

under section 107(d)(3)(E). They would

no longer be included among those

measures whose approval is part of the

requirement of having a fully approved

SIP.

A commenter contended that, by

relying upon its determination of

attainment, USEPA is avoiding the

redesignation requirements of 107(d).

This is not the case. What USEPA has

done is make a determination that since

the area is attaining the standard, which

is a factual determination, certain

provisions of the CAA, whose express

purpose is to achieve attainment of the

standard, do not require SIP revisions to

be made by the State for so long as the

area continues to attain the standard.

This has long been USEPA's policy with

respect to the section 172(c)(9)

contingency measures and section

172(c)(2) RFP requirement. See general

preamble at 57 FR 13498. USEPA has

also made determinations regarding

section 182(f) NOx waivers at or before

the redesignation of an area and

therefore not required NOx RACT

submissions to approve such

redesignations. See the Bay Area

redesignation at 59 FR 49361.

USEPA disagrees with the

commentor's analysis of the language

and structure of the CAA. USEPA's

statutory analysis was explained in

detail in the June 8, 1995 direct final

rule and in the May 10, 1995

memorandum from John Seitz. USEPA

further elaborated upon this analysis,

and responded to many of the concerns

raised by the plaintiffs, in its final

determination of attainment of Ozone

Standard for Salt Lake and Davis

Counties, Utah, and Determination

Regarding Applicability of Certain

Reasonable Further Progress and

Attainment Demonstration

Requirements. See 60 FR 36,723 (July

18, 1995). To the extent here pertinent,

such portions of that notice, including

the responses to comments, are

incorporated herein by reference.

Thus, USEPA disagrees with the

commentors' view that USEPA is not

complying with all the redesignation

requirements of 107(d)(3)(E). The area

has a fully approved plan for and has

met all applicable requirements. USEPA

has interpreted SIP submission

requirements of section 182(b)(1)

regarding reasonable further progress

and attainment demonstration plans,

and of section 172(c)(9) regarding

contingency measures to be

implemented in the event an area fails

to make reasonable further progress or

attain the standard by the attainment

date, not to apply for so long as the area

continues to attain the standard. Since

they are not applicable, fulfillment of

these requirements is not necessary to

meet the redesignation criteria of

107(d)(3)(E).

The commenter challenges USEPA's

authority to determine certain SIP

requirements inapplicable, and then

bootstraps that argument to complain

that since CAL has not met these

requirements, the redesignation request

only partially fulfills 107(d)(E)(v). The

commenter argues that this is because

the state has not met all "applicable"

requirements under section 110 and Part

D; but the requirements it points to are

the very ones that USEPA has

determined are inapplicable.

USEPA rejects this kind of circular

argument. Since USEPA has determined

that the statute does not require certain

submissions so long as the area is in

attainment, those inapplicable

requirements cannot serve as the basis

for concluding that the redesignation

request is defective. Under the criteria

of section 107(d)(E)(3) itself, a state need

only meet all applicable requirements,

and have a fully approved plan that

contains all required elements. Thus

USEPA's interpretation is fully

consistent with the criteria of section

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107(d)(3). Since USEPA has determined

that the 15%, attainment demonstration,

and contingency plan requirements are

not applicable to CAL, and has found

the SIP to be fully approvable without

them, the CAL area has fairly met the

criteria of section 107(d)(3). Certainly

USEPA, after determining that these

requirements are inapplicable, could not

in good faith conclude that the

redesignation request is defective

because it fails to meet them.

Thus USEPA concludes that, where it

has made a determination of attainment

that results in the suspension of

requirements, it may rely on that

determination and its consequences in

considering the approvability of a

redesignation request.

For the reasons stated above and

elsewhere in this Notice, in the June 29,

1995 Federal Register notices (60 FR

3372, 33781), in the May 10, 1995

memorandum, and in the 60 FR 36,723

(July 18, 1995) Utah notice, USEPA does

not believe that the rulemaking violates

any section of the CAA, nor does it

circumvent the redesignation

requirements under section 107(d)(3)(E).

(20) Comment: Citizens Commissions

for Clean Air in the Lake Michigan Area

stated that USEPA's action is not a

reasonable interpretation of USEPA's

nondiscretionary mandate "to protect

and enhance the quality of the Nation's

air resources so as to promote the public

health and welfare and the productive

capacity of its population[.]}. section

101 (b)(1).

(20) Response: The USEPA disagrees

with the commentor's statement that its

action violates section 101(b)(1). Section

101(b)(1) does not establish a

nondiscretionary duty; it is a statement

of purpose-a purpose that USEPA is

not disregarding in this action. the area

has attained the primary ozone

standard, a standard designed to protect

public health with an adequate margin

of safety. (see section 109(b)(1)).

USEPA's action does not relax any of

the requirements that have led to the

attainment of the standard. Rather, its

action has the effect of suspending

requirements, for additional pollution

reductions, above and beyond those that

have resulted in the attainment of the

health-based standard.

(21) Comm ent: A commentor asserts

that USEPA's action violates the

Administrative Procedure Act and the

CAA through its reliance on

unpublished memoranda of John

Calcagni and John Seitz and the General

Preamble for the Implementation of

Title I of the Clean Air Act Amendments

of 1990, 57 FR 13498 (April 16, 1992).

According to the commentor, reliance

on those documents is inappropriate

and illegal since those documents were

issued without opportunity for notice

and comment and are not enforceable

regulations.

(21) Response: USEPA's reference to

and reliance on those documents, all of

which are either published or publicly

available and a part of the record of this

rulemaking, is in no way illegal under

provisions of either the CAA or the

Administrative Procedures Act. (The

commentor cited no specific provisions

of either act). USEPA agrees that such

documents do not establish enforceable

regulations; they do not purport to be

anything but guidance. That is precisely

why USEPA has performed this

rulemaking-a notice-and-comment

rulemaking to take comment on its

statutory interpretations and factual

determinations in order to make a

binding and enforceable determination

regarding the CAL area. The June 29,

1995 Federal Register notice referred to

USEPA's prior policy memoranda not as

binding the Agency to adopt the

interpretations being proposed therein,

but rather as a useful description of the

rationale underlying those proposed

interpretations. USEPA has explained

the legal and factual basis for its

rulemaking in the June 29, 1995 Federal

Register notice and afforded the public

a full opportunity to comment on

USEPA's proposed interpretation and

determination fully consistent with the

applicable procedural requirements of

the Administrative Procedures Act. (The

procedural requirements of section

307(d) of the CAA do not apply to this

rulemaking since it is not among the

rulemakings listed in section 307(d)(1).)

(22) Comment: USEPA claims that, in

accordance with the October 1994

Nichols memorandum, "that areas being

redesignated need not comply with the

requirement that a NSR program be

approved prior to redesignation so

[long] as they have an approved

Prevention of Significant Deterioration

(PSD) SIP or delegated PSD authority."

60 FR at 31439. USEPA apparently

believes it can replace NSR with PSD,

but the CAA does not grant the

Administrator such discretion.

(22) Response: The USEPA believes

that the CAL area may be redesignated

to attainment notwithstanding the lack

of a fully-approved NSR program

meeting the requirements of the 1990

Act amendments and the absence of

such an NSR program from the

contingency plan. This view, while a

departure from past policy, has been set

forth by the USEPA as its new policy in

a memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

entitled Part D New Source Review (part

D NSR) Requirements forAreas

Requesting Redesignation to

Attainment.

The USEPA believes that its decision

not to insist on a fully-approved NSR

program as a prerequisite to

redesignation is justifiable as an

exercise of the Agency's general

authority to establish de minimis

exceptions to statutory requirements.

See Alabama Power Co. v. Costle, 636

F.2d 323, 360-61 (D.C. Cir. 1979). Under

Alabama Power Co. v. Costle, the

USEPA has the authority to establish de

minimis exceptions to statutory

requirements where the application of

the statutory requirements would be of

trivial or no value environmentally.

In this context, the issue presented is

whether the USEPA has the authority to

establish an exception to the

requirements of section 107(d)(3)(E) that

the USEPA have fully-approved a SIP

meeting all of the requirements

applicable to the area under section 110

and part D of title I of the Act. Plainly,

the NSR provisions of section 110 and

part D are requirements that were

applicable to the Ohio area seeking

redesignation at the time of the

submission of the request for

redesignation. Thus, on its face, section

107(d)(3)(E) would seem to require that

the State have submitted and the

USEPA have fully-approved a part D

NSR program meeting the requirements

of the Act before the areas could be

redesignated to attainment.

Under the USEPA's de minimis

authority, however, it may establish an

exception to an otherwise plain

statutory requirement if its fulfillment

would be of little or no environmental

value. In this context, it is necessary to

determine what would be achieved by

insisting that there be a fully-approved

part D NSR program in place prior to the

redesignation of the CAL area. For the

following reasons, the USEPA believes

that requiring the adoption and fullapproval of a part D NSR program prior

to redesignation would not be of

significant environmental value in this

case.

Ohio has demonstrated that

maintenance of the ozone National

Ambient Air Quality Standards

(NAAQS) will occur even if the

emission reductions expected to result

from the part D NSR program do not

occur. The emission projections made

by Ohio to demonstrate maintenance of

the NAAQS considered growth in point

source emissions (along with growth for

other source categories) and were

premised on the assumption that the

Prevention of Significant Deterioration

(PSD) program, rather than the part D

NSR, would be in effect, during the

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maintenance period. Under NSR,

significant point source emissions

growth would not occur. Michigan

assumed that NSR would not apply after

redesignation to attainment, and

therefore, assumed source growth

factors based on projected growth in the

economy and in the area's population.

(It should be noted that the growth

factors assumed may be overestimates

under PSD, which would restrain source

growth through the application of best

available control techniques.) Thus,

contrary to the assertion of the

commentor, Ohio has demonstrated that

there is no need to retain the part D NSR

as an operative program in the SIP

during the maintenance period in order

to provide for continued maintenance of

the NAAQS. (If this demonstration had

not been made, NSR would have had to

have been retained in the SIP as an

operative program since it would have

been needed to maintain the ozone

standard.)

The other purpose that requiring the

full-approval of a part D NSR program

might serve would be to ensure that

NSR would become a contingency

provision in the maintenance plan

required for these areas by section

107(d)(3)(E)(iv) and 175A(d). These

provisions require that, for an area to be

redesignated to attainment, it must

receive full approval of a maintenance

plan containing "such contingency

provisions as the Administrator deems

necessary to assure that the State will

promptly correct any violation of the

standard which occurs after the

redesignation of the area as an

attainment area. Such provisions shall

include a requirement that the State will

implement all measures with respect to

the control of the air pollutant

concerned which were contained in the

SIP for the area before redesignation of

the area as an attainment area." Based

on this language, it is apparent that

whether an approved NSR program

must be included as a contingency

provision depends on whether it is a "measure" for the control of the

pertinent air pollutants.

As the USEPA noted in the proposal

regarding this redesignation request, the

term "measure" is not defined in

section 175A(d) and Congress utilized

that term differently in different

provisions of the Act with respect to the

PSD and NSR permitting programs. For

example, in section 1 10(a)(2)(A),

Congress required that SIPs include

"enforceable emission limitations and

other control measures, means, or

techniques . . . as may be necessary or

appropriate to meet the applicable

requirements of the Act." In section

110(a)(2)(C), Congress required that SIPs

include "a program to provide for the

enforcement of the measures described

in subparagraph (A), and regulation of

the modification and construction of

any stationary source within the areas

covered by the plan as necessary to

assure that NAAQS are achieved,

including a permit program as required

in parts C and D." (Emphasis added.) If

the term measures as used in section

110 (a)(2)(A) and (c) had been intended

to include PSD and NSR there would

have been no point to requiring that

SIPs include both measures and

preconstruction review under parts C

and D (PSD or NSR). Unless "measures"

referred to something other than

preconstruction review under parts C

and D, the reference to preconstruction

review programs in section 1 10(a)(2)(C)

would be rendered mere surplusage.

Thus, in section 110(a)(2) (A) and (C), it

is apparent that Congress distinguished "measures" from preconstruction

review. On the other hand, in other

provisions of the Act, such as section

161, Congress appeared to include PSD

within the scope of the term

"measures."

The USEPA believes that the fact that

Congress used the undefined term

"measure" differently in different

sections of the Act is germane. This

indicates that the term is susceptible to

more than one interpretation and that

the USEPA has the discretion to

interpret it in a reasonable manner in

the context of section 175A. Inasmuch

as Congress itself has used the term in

a manner that excluded PSD and NSR

from its scope, the USEPA believes it is

reasonable to interpret "measure," as

used in section 175A(d), not to include

NSR. That this is a reasonable

interpretation is further supported by

the fact that PSD, a program that is the

corollary of part D NSR for attainment

areas, goes into effect in lieu of part D

NSR.3 This distinguishes NSR from

other required programs under the Act,

such as inspection and maintenance and

3 The USEPA is not suggesting that NSR and PSD

are equivalent, but merely that they are the same

type of program. The PSD program is a requirement

in attainment areas and designed to allow new

source permitting, yet contains adequate provisions

to protect the NAAQS. If any information including

preconstruction monitoring, indicates that an area

is not continuing to meet the NAAQS after

redesignation to attainment, 40 CFR part 51

appendix S (Interpretive Offset Rule) or a 40 CFR

51.165(b) program would apply. The USEPA

believes that in any area that is designated or

redesignated as attainment under section 107, but

experiences violations of the NAAQS, these

provisions should be interpreted as requiring major

new or modified sources to obtain VOC emission

offsets of at least a 1:1 ratio, and as presuming that

1:1 NOx offsets are necessary. See October 14, 1994

memorandum from Mary Nichols entitled Part D

New Source Review (part D NSR) Requirements for

Areas Requesting Redesignation to A ttainment.

Reasonably Available Control

Technology (RACT) programs, which

have no corollary for attainment areas.

Moreover, the USEPA believes that

those other required programs are

clearly within the scope of the term

"measure." 4

The USEPA's logic in treating part D

NSR in this manner does not mean that

other applicable part D requirements,

including those that have been

previously met and previously relied

upon in demonstrating attainment,

could be eliminated without an analysis

demonstrating that maintenance would

be protected. As noted above, Ohio has

demonstrated that maintenance would

be protected with PSD in effect, rather

than part D NSR. Thus, the USEPA is

not permitting part D NSR to be

removed without a demonstration that

maintenance of the standard will be

achieved. Moreover, the USEPA has not

amended its policy with respect to the

conversion of other SIP elements to

contingency provisions, which is that

they may be converted to contingency

provisions only upon a showing that

maintenance will be achieved without

them being in effect. Finally, as noted

above, the USEPA believes that the NSR

requirement differs from other

requirements, and does not believe that

the rationale for the NSR exception

extends to other required programs.

As the USEPA has recently changed

its policy, the position taken in this

action is consistent with the USEPA's

current national policy. That policy

permits redesignation to proceed

without otherwise required NSR

programs having been fully approved

and converted to contingency

provisions provided that the area

demonstrates, as has been done in this

case, that maintenance will be achieved

with the application of PSD rather than

part D NSR.

(23) Comment: A violation does not

occur until the third "exceedance", this

is deceptive and doesn't help people get

information that the air is polluted.

Even though .124 ppm is above the

"standard" of 0.12 ppm; because of

rounding that terrible air wouldn't even

be counted as an exceedances or

violation.

4 The USEPA also notes that in the case of the

Cleveland, Ohio area, all permits to install for major

volatile organic compound (VOC) emission sources

and major VOC emission source modifications

issued by the State in the moderate ozone

nonattainment areas since November 15, 1992 have

complied with the 1.15 to 1.0 VOC emissions offset

ratio. In addition, permits to install cannot be

issued under the Prevention of Significant

Deterioration (PSD) program unless the applicant

can demonstrate that the increased emissions from

the new or modified source will not result in a

violation of the NAAQS.

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Cleveland -Akron -Lorain's ozone

monitors are not on all year. We should

be monitoring year-round. We get

unusual weather in northeast Ohio.

We've had temperatures in the 80's

during every month when we are not

required by law to monitor. If we had

a violation during these months (we

have had extreme haze then and lots of

emergency room visits from respiratory

patients), we have no way of knowing,

so these days don't count, either. I am

against the redesignation of ClevelandAkron-Lorain for these reasons.

(23) Response: Published guidance

(Guideline for the Interpretation of

Ozone Air Quality Standards, January

1979, EPA-450/4-79-003), which is

part of the ozone standard by reference

in 40 CFR part 50, appendix H, notes

that the stated level of the standard is

determined by defining the number of

significant figures to be used in

comparison with the standard. For

example, a standard level of 0.12 ppm

means that measurements are to be

rounded to two decimal places (0.005

rounds up), and therefore, 0.125 ppm is

the smallest three-decimal

concentration value in excess of the

level of the standard that is considered

an exceedance.

Since ozone levels decrease

significantly in the colder parts of the

year in many areas, ozone is required to

be monitored at monitors only during

the "ozone season" which is listed in

Appendix D to 40 CFR part 58 for Ohio

as April through October. This seasonal

definition was initially set in 1986

based on temperature data. Months

where the monthly mean daily

maximum temperature is less than 55

degrees Fahrenheit were generally

excluded from the season. In ClevelandAkron-Lorain, this occurs from

November through March. In different

areas of the country where months are

cooler than 55 degrees Fahrenheit,

ozone concentrations greater than .08

ppm are unlikely to occur. In addition

actual ozone monitoring data for the

Cleveland -Akron -Lorain area collected

from 1987 though 1994 for the months

of April and October show only three

recorded concentrations above .100

parts per million. The highest

monitored concentration was .109 parts

per million during October 1992. The

ozone NAAQS of .12 ppm was not

exceeded in the Cleveland -Akron -Lorain

area for the months of April and October

from 1987 though 1994. Given the

generally lower temperatures of the

other winter months compared to April

and October, it is expected that these

months would not have monitored an

exceedance of the ozone NAAQS.

(24) Comment: A commenter was

concerned that because of the

redesignation to attainment the area

would become exempt from congestion

mitigation and air quality (CMAQ)

funds which local transit agencies relied

on for new buses and expanded service

thus increasing air pollution.

(24) Response: The federal CMAQ

program is designed to give additional

money for air quality nonattainment

areas to use on transportation projects

that will improve the air quality and

bring the area into attainment of the air

quality standards. The United States

Department of Transportation (USDOT)

revised their CMAQ guidance on July

13, 1995, to allow redesignated areas to

have a 2 year transition period to insure

continuity in CMAQ funding for

projects which are programmed in the

first 2 years of the transportation

improvement program at the time the

area is redesignated to attainment.

Although Cleveland -Akron -Lorain will

lose the additional CMAQ funds after

the 2-year transitional period, the

projects already programmed for

funding will now be able to continue

implementation. Air pollution is not

expected to increase because the stricter

standards for new cleaner cars, trucks

and buses will help to decrease

pollutant emissions. The USEPA

believes the air pollution emissions will

thus continue to decrease or at least

maintain the levels that have brought

the area into attainment.

(25) Comment: The 15% plan

approved for Greater Cleveland -AkronLorain fell short of the required

reduction because the area did not

choose to do reformulated gasoline. The

area has not met this requirement and

should not be redesignated.

(25) Response: USEPA determined

that, based on USEPA's determination

of attainment, the requirement for a

15% reduction in volatile organic

emissions in the area is no longer

applicable. See the final action also

contained in this final rulemaking.

Since this is no longer an applicable

requirement, the area is not required to

meet it before the CAL area can be

redesignated. The 15% reduction plan

that was submitted for the CAL area did

not rely on reformulated gasoline to

achieve the emissions reduction.

(26) Comment: Several commenters

believed there was a potential conflict of

interest when the same entity (i.e. the

City of Cleveland) does the monitoring

and also applies for redesignation.

(26) Response: The ambient air data

collected by State and local agencies are

required to meet very specific quality

assurance measures that are detailed in

40 CFR 58.10 and appendix A. The

USEPA Quality Assurance manual gives

more detailed guidance on operation of

ambient air monitors. The USEPA

audits the State and local agencies on a

regular basis to ascertain that the

appropriate quality assurance measures

are being implemented. In the case of

the Cleveland local agency, the State air

agency (Ohio Environmental Protection

Agency) is responsible for conducting

accuracy audits on the air monitoring

equipment being operated by the

Cleveland local agency. In addition, the

USEPA conducts audits of the air

monitoring network. Precision and

Accuracy audits are reported on a

regular basis to the USEPA and recorded

in the national AIRS data bank. This

information is available to the public.

This oversight ensures the quality of the

data relied upon for redesignation.

III. RulemakingAction

On June 29, 1995, USEPA proposed to

determine that the 15% plan, attainment

demonstration, and contingency

measures plan for the Cleveland -AkronLorain area are no longer applicable

requirements, since the area has

attained the ozone NAAQS. The USEPA

received several comments pertaining to

the proposed rulemaking. These

comments were considered and

responses are detailed in the above

section of the rulemaking on the

determination of attainment. USEPA

believes that the determination of

attainment is still warranted and is

taking final action to determine that the

requirements for a 15% emissions

reduction plan, attainment

demonstration, and contingency

measures plan are not applicable at this

time.

On June 15, 1995, USEPA proposed to

approve the OEPA request for

redesignation to attainment and the

maintenance plan for ozone for the CAL

moderate nonattainment area counties

of Lorain, Cuyahoga, Lake, Ashtabula,

Geauga, Medina, Summit, and Portage.

The USEPA received about 50 comment

letters pertaining to the proposed

rulemaking. The comments were

considered and responses are detailed

in the above section of the rulemaking

on the ozone redesignation request. The

USEPA believes that the redesignation

requirements of Section 107(d) are

satisfied and is taking final action to

approve the requests for redesignation

to attainment and the maintenance plan

for the CAL counties of Lorain,

Cuyahoga, Lake, Ashtabula, Geauga,

Medina, Summit, and Portage.

IV. Boilerplate Regulatory Language

USEPA finds that there is good cause

for this redesignation, SIP revision, and

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determination of attainment to become

effective immediately upon publication

because a delayed effective date is

unnecessary due to the nature of a

redesignation to attainment,

determination of attainment, which

exempts the areas from certain Clean

Air Act requirements that would other

wise apply to it. The immediate

effective date for this redesignation is

authorized under both 5 U.S.C.

553(d)(1), which provides that

rulemaking actions may become

effective less than 30 days after

publication if the rule "grants or

recognizes an exemption or relieves a

restriction" and section 553(d)(3),

which allows an effective date less than

30 days after publication "as otherwise

provided by the agency for good cause

found and published with the rule."

Nothing in this action should be

construed as permitting, allowing or

establishing a precedent for any future

request for revision to any SIP. USEPA

shall consider each request for revision

to the SIP in light of specific technical,

economic, and environmental factors

and in relation to relevant statutory and

regulatory requirements.

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214-2225), as revised by a July 10,

1995, memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget (OMB) has exempted this

regulatory action from Executive Order

12866 review.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, USEPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

Redesignation of an area to attainment

under section 107(d)(3)(E) of the CAA

does not impose any new requirements

on small entities. Redesignation is an

action that affects the status of a

geographical area and does not impose

any regulatory requirements on sources.

The Administrator certifies that the

approval of the redesignation request

will not affect a substantial number of

small entities.

SIP approvals under section 110 and

subchapter I, Part D of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

federal-state relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

federal inquiry into the economic

reasonableness of state action. The CAA

forbids USEPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C.

7410(a)(2).

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (Unfunded Mandates Act), signed

into law on March 22, 1995, USEPA

must undertake various actions in

association with proposed or final rules

that include a Federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to State,

local, or tribal governments in the

aggregate.

Through submission of the state

implementation plan or plan revisions

approved in this action, the State and

any affected local or tribal governments

have elected to adopt the program

provided for under section 175A of the

Clean Air Act. The rules and

commitments being proposed for

approval in this action may bind State,

local and tribal governments to perform

certain actions and also may ultimately

lead to the private sector being required

to perform certain duties. To the extent

that the rules and commitments being

proposed for approval by this action

will impose or lead to the imposition of

any mandate upon the State, local or

tribal governments either as the owner

or operator of a source or as a regulator,

or would impose or lead to the

imposition of any mandate upon the

private sector, USEPA's action will

impose no new requirements; such

sources are already subject to these

requirements under State law.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action. The USEPA has also determined

that this action does not include a

mandate that may result in estimated

costs of $100 million or more to State,

local, or tribal governments in the

aggregate or to the private sector.

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by July 8, 1996.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Air pollution control, Nitrogen

Oxides, Ozone, Volatile organic

compounds.

40 CFR Part 81

Air pollution control.

Dated: April 4, 1996.

Valdas V. Adamkus,

Regional A dm inistrator.

Chapter I, Title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52-[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 767 1q.

2. Section 52.1885 is amended by

adding paragraphs (b)(10) and (w) to

read as follows:

§52.1885 Control Strategy: Ozone.

(b)* * *

(9) Lorain, Cuyahoga, Lake, Ashtabula,

Geauga, Medina, Summit, and

Portage Counties.

(w) Determination-USEPA is

determining that, as of May 7, 1996, the

Cleveland -Akron -Lorain ozone

nonattainment area (which includes the

Counties of Ashtabula, Cuyahoga,

Geauga, Lake, Lorain, Medina, Portage

and Summit) have attained the ozone

standard and that the reasonable further

progress and attainment demonstration

requirements of section 182(b)(1) and

related requirements of section 172(c)(9)

of the Clean Air Act do not apply to the

area.

PART 81-DESIGNATION OF AREAS

FOR AIR QUALITY PLANNING

PURPOSES-OHIO

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401 767 1q.

2. In § 81.336 the ozone table is

amended by revising the entry for the

Cleveland -Akron -Lorain Area to read as

follows:

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§81.336 Ohio.

OHIO-OZONE

Designation Classification

Designated area

Date 1 Type Date 1 Type

Cleveland-Akron-Lorain Area ................................................................... M ay 7, 1996 ....... Attainm ent.

Ashtabula County

Cuyahoga County

Geauga County

Lake County

Lorain County

Medina County

Portage County

Summit County

This date is November 15, 1990 unless otherwise noted.

[ER Doc. 96 11133 Filed 5 6 96; 8:45 am]

BILLING CODE 6560-50-P

40 CFR Part 300

[FRL-5468-7]

National Oil and Hazardous

Substances Contingency Plan;

National Priorities List Update

AGENCY: Environmental Protection

Agency.

ACTION: Notice of Deletion of the East

Bethel Demolition Landfill Superfund

Site from the National Priorities List

(NPL).

SUMMARY: The Environmental Protection

Agency (EPA) announces the deletion of

the East Bethel Demolition Landfill site

in Anoka, Minnesota from the National

Priorities List (NPL). The NPL is

Appendix B of 40 CFR Part 300 which

is the National Oil and Hazardous

Substances Contingency Plan (NCP),

which EPA promulgated pursuant to

Section 105 of the Comprehensive

Environmental Response,

Compensation, and Liability Act of 1980

(CERCLA), as amended. EPA and the

State of Minnesota have determined that

all appropriate Fund-financed responses

under CERCLA have been implemented

and that no further response by

responsible parties under CERCLA is

appropriate.

EFFECTIVE DATE: May 7, 1996.

FOR FURTHER INFORMATION CONTACT: Rita

Garner-Davis at (312) 886-2440,

Associate Remedial Project Manager,

Superfund Division, U.S. EPA-Region

V, 77 West Jackson Blvd., Chicago, IL

60604. Information on the site is

available at: EPA Region V docket room

at the above address and at the East

Bethel City Hall and the Minnesota

Pollution Control Agency Public

Library, 520 Lafayette RD. St. Paul, MN

55155-4194.

SUPPLEMENTARY INFORMATION: The site to

be deleted from the NPL is the East

Bethel Demolition Landfill Site in

Anoka County, Minnesota. A Notice of

Intent to Delete was published March

13, 1996, (61 FR 10298) for this site. The

closing date for comments on the Notice

of Intent to Delete was April 12, 1996.

EPA received no comments.

The EPA identifies sites which appear

to present a significant risk to public

health, welfare, or the environment and

it maintains the NPL as the list of those

sites. Sites on the NPL may be the

subject of Hazardous Substance

Response Trust Fund-financed remedial

actions. Any site deleted from the NPL

remains eligible for Fund-financed

remedial actions in the unlikely event

that conditions at the site warrant such

action. Section 300.425(e)(3) of the NCP

states that Fund-financed actions may

be taken at sites deleted from the NPL

in the unlikely event that conditions at

the site warrant such action. Deletion of

a site from the NPL does not affect

responsible party liability or impede

Agency efforts to recover costs

associated with response efforts.

List of Subjects in 40 CFR Part 300

Environmental protection, Hazardous

Waste, Chemicals, Hazardous

substances, Reporting and

recordkeeping requirements, Superfund,

Water pollution control, Water supply.

Dated: April 22, 1996.

David A. Ulirich,

Acting Regional A dministrator, U.S. EPA,

Region V.

40 CFR part 300 is amended as

follows:

PART 300-[AMENDED]

1. The authority citation for part 300

continues to read as follows:

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.

9601 9657; E.O. 12777, 56 FR 54757, 3 CFR,

1991 Comp.; p.351; E.O. 12580, 52 FR 2923,

3 CFR, 1987 Comp.; p. 193.

Appendix B-[Amended]

2. Table 1 of appendix B to part 300

is amended by removing the East Bethel

Demolition Landfill Site, East Bethel

Township, Minnesota.P

[ER Doc. 96 11218 Filed 5 6 96; 8:45 am]

BILLING CODE 6560-50-P

40 CFR Part 355

[Docket 300 PQ-R2; FRL-5468-5]

RIN 2050-AD50

Extremely Hazardous Substances

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today, EPA is implementing

one of its regulatory reform

commitments set forth in its June 1,

1995, Report to the President. EPA is

taking final action on two proposed

rules that modify the extremely

hazardous substances (EHS) list and

reportable quantities under section 302

of the Emergency Planning and

Community Right-to-Know Act of 1986

HeinOnline -- 61 Fed. Reg. 20473 1996